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Gender expression and gender identity now express grounds of discrimination under Code

November 07, 2016

Following our previous post on the British Columbia government's bill to amend the Human Rights Code [Code] earlier this year, the bill recently received royal assent and “gender identity and gender expression” are now expressly included in the Code as protected grounds.

Though the meaning and application of these new protected grounds will need to be fleshed out by Tribunal and court decisions, the Tribunal’s website now provides the following descriptions:

Gender Expression: Gender expression is how a person presents their gender. This can include behaviour and appearance, including dress, hair, make-up, body language and voice. This can also include name and pronoun, such as he, she or they. How a person presents their gender may not necessarily reflect their gender identity.

Gender Identity: Gender identity is a person’s sense of themselves as male, female, both, in between or neither. It includes people who identify as transgender. Gender identity may be different or the same as the sex a person is assigned at birth.

As we noted previously, these amendments reflect a change in the BC government’s policy. For years, the government maintained that it was not necessary to amend the Code because the protected ground of sex was already sufficient to protect the rights of transgendered people. While it remains to be seen whether, and if so, how the new grounds may change the manner in which the Tribunal approaches complaints involving transgender rights, they no doubt provide further substance to a complex and evolving area that must be considered by employers.